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POSH Act applicable even if girl student complains against teacher: Calcutta High Court

The issue whether applicability of POSH Act 2013, a statute enacted as per the guidelines in vishakha judgement,can be extended to complaints of sexual harassment by girl student against male school teacher was before consideration of a division bench of Calcutta High Court consisting of Justice Harish Tandon  and Justice Rabindranath Samanta in the matters between Pawan Kumar Niroula v. Union of India WP.CT. 86 of 2021 decided on 24.1.2022

The facts of the case are that the Jawahar Navodaya Vidyalaya is a government school who filed a police complaint after receiving complaints from several students that the petitioner was harassing them. Shortly after filing a complaint with the police, an internal complaints committee was set up by the school to investigate the complaints. The petitioner was informed that he was suspended through unofficial channels, although he was not informed of any disciplinary action against him. The stay order was extended several times over the course of a year, during which time the petitioner was briefed on the forming a committee that was to hold a summary trial for the petitioner.

The counsel for the petitioner challenged that both the stay order and the summary proceedings before the Central Administrative Court (CAT). The court found no flaws in the proceedings and instructed the petitioner to cooperate with the authorities. This order of the CAT was challenged before the Supreme Court in the present case. It was the petitioner’s stance that school officials should form an internal complaints committee and that summary proceedings had no legal force in terms of the provisions of the POSH Act.It was alleged that the suspension decision was illegal as it was made while the petitioner was in custody for 24 hours, and a civil servant could only be suspended if the detention period exceeded 48 hours.

The counsel for the respondent contended that because the allegations were made by the school’s female students, the POSH Act was not actually applicable to the facts of the case. This interpretation was flatly rejected by the judges, who discussed the definition of “aggrieved woman” under the law.

The Calcutta High Court held the committee in question was not an internal complaints committee as required by the POSH Act. The court ruled that such an act exceeding 90 days without justification was illegal. The summary trial committee was found to lack legal force as it did not comply with the mandatory requirements of the law. The court debated the Supreme Court’s decision in the case of Ajay Kumar Choudhary v. Union of India. In this case, the higher court ruled that a suspension exceeding 90 days without justification was illegal. The Court therefore found the CAT decision upholding the committee’s legality unsustainable. School authorities were directed to allow the petitioner to rejoin their duties within one month and pay all retroactive fees due within two months of rejoining.

Click here to read the judgement

Judgement reviewed by Bhaswati Goldar

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